Practice and Procedure

Wasted costs order over e-disclosure failures

PUBLISHED May 16, 2012

Wednesday 16 May 2012 by Deborah Blaxell

When assessing litigation costs, the expense of collecting, analysing and reviewing information is a key consideration. Only by ensuring that these processes are completed accurately and efficiently can the cost of e-disclosure be effectively managed.

Litigants have received a timely reminder, firstly that the courts will not tolerate sub standard e-disclosure practices leading to errors and, ultimately, increased costs of the overall litigation; and secondly, that it is imperative that law firms and in-house counsel provide third-party vendors with comprehensive instructions and continue to work with vendors collaboratively throughout the course of the project in order to minimise the risk of mistakes.

In the recent case of West African Gas Pipeline Co Limited v Willbros Global Holdings Inc [2012] EWHC 396, the defendant successfully brought a claim for a wasted costs order against the plaintiff and was awarded £135,000 as a result of a number of failures and inefficiencies when dealing with electronic disclosure which rendered the plaintiff's disclosure 'wholly inadequate'. The case relates to the plaintiff's failure to provide proper disclosure, which the defendant claimed resulted in increased costs of £1.8m in a claim for damages of £274m, on grounds including the following:

1. Errors by outsourced reviewers: A litigation support company whose staff were supervised by lawyers from the plaintiff's solicitors, failed to adequately review certain documents such that 'a significant number of documents disclosed... should have been disclosed at an earlier stage'. A number of documents were mistakenly marked as not being disclosable during the review process. This led to a duplication of effort as documents had to be re-reviewed in order to check initial work.

2. Inadequate de-duplication and redaction: The plaintiff's data processing provider failed to identify a large number of duplicated documents due to problems encountered by the provider's personnel. The judge found that this had 'led to wasted time and costs in reviewing a number of copies of the same document'. The judge further confirmed his view that 'if appropriate software is properly applied it can remove multiple copies of the same or similar documents'.

3. Inadequate identification, preservation and collection of appropriate electronic documentation: The judge found that the failure to harvest a complete set of electronic documentation for the purposes of electronic disclosure at the outset was a serious mistake, resulting in an inadequate initial review and collection of a complete set of documents.

E-disclosure can be complex - particularly in cases where there are large numbers of custodians, as data is held on multiple systems and formats, and multiple jurisdictions are involved. Information that needs to be disclosed will inevitably include electronically stored information (ESI), as well as paper documents. As the number of mobile devices and the types of data that are used continue to multiply, it is increasingly important that all of this information is located, preserved and analysed accurately and efficiently, to manage the costs incurred by these processes.

Moreover, outsourced document review requires the implementation of efficient workflow processes, meaningful communication between lawyers and the provider and the application of defensible validation criteria throughout the review. Document review tends to be the most expensive element of any disclosure exercise and can account for as much as 60-85% of the total cost in a single case. It is therefore imperative that the process is handled effectively, to ensure that costs do not spiral out of control.

As data volumes increase and corporate budgets shrink, savvy law firms and their clients are sensibly exploring alternative means of searching and reviewing their information and incorporating more cost effective methods, including legal process outsourcing, into their working practices. Costs will be significantly reduced if those managing the disclosure exercise gain an early appreciation of the nature of the data, and are able to assess what is likely to be relevant to the investigation and what can safely be removed from the data set prior to review. The above case highlights the need for litigants to engage effectively with process driven, experienced, professional and technically proficient providers. If they do not, the result will be an increase in costs for the corporate client and reputational damage and embarrassment for the law firm.

Deborah Blaxell is legal consultant at Epiq Systems